Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO : MHCC010038902020. 1 Notice of Motion No. 1304/2020
in L.C. Suit No. 1376/2020.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1304 OF 2020.
IN
L.C. SUIT NO. 1376 OF 2020.
Karnail Singh Arora. …..……………………………. …. PLAINTIFF.
V/s.
MCGM. ....………………………………………........ …. DEFENDANT.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 12th November, 2024.
APPEARANCES :
Mr. Vimlesh Singh, Ld. Advocate for the Plaintiff.
Mrs. S.R. Charatkar, Ld. Advocate for the Defendant/MCGM.
*****
01. The plaintiff has taken out this Notice of Motion-(‘the NM’),
to restrain the defendant to demolish or pull down the suit premises viz.
‘Mini Punjab Lakeside’, comprising of G+mezzanine floor, admeasuring
547.75 sq. mtrs., made up of BM walls and AC sheet roof, at Survey No.
19 (pt), CTS No.2 (pt) of Village Powai, Taluka Kurla, in pursuance of
the notice of dtd. 15.10.2018, issued U/s. 351 of the MMC Act, and the
Order dtd. 12.06.2020. Perused the NM, accompanying affidavit, reply
of the defendant, the plaintiff’s reply-rejoinder, documents relied upon
by the parties and their written notes along-with legal citations. Heard.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(1). Whether the plaintiff has a prima facie
case in his favour? …..........…................. …Yes.
(2). Whether balance of convenience lies in
favour of the plaintiff? …...…..…............ …Yes.
(3). Whether the plaintiff would suffer an
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irreparable loss, if the interim relief, as
prayed for, is not granted?.….................. …Yes.
(4). What Order? …..........….…......................…As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As these points are interconnected, to maintain the brevity,
I am taking the same for joint a discussion. Since inception, the plaintiff
presented himself as a co-owner and joint occupier of land admeasuring
of 3569 sq. yards (equivalent to 2887.50 sq. mtr.) along-with structures
standing thereon, under assessment No. SN 4995 (5) 5A, SN 4995(5),
S-4995(5A), 5/A/A and S-4995(7), 7/A, situated at Survey No.19 (pt.),
corresponding CTS No. 2 (pt.) of Village Powai, Taluka Kurla, MSD, at
J.V.L.R. Road, Powai, Mumbai (i.e. the said property). The plot of land,
bearing Survey No. 19, CTS No. 2 of Village Powai, Taluka Kurla, MSD
was a vast land (the larger property). In view of the Govt. Gazette dtd.
25.08.1993, it was declared as slum, U/s. 4 (1) of the Slums Act. Out of
the larger property, some of the portion was in use and possession of the
others and it was assessed to NA Taxes as per the Order dtd.17.01.1983.
By way of the Deed of Assignment, this plaintiff, along-with one Surjeet
Singh, purchased the property and were also given its possession. Later
on, they jointly purchased title of the property from its actual owner/
title holder, for the consideration, on 04.10.2001. On 29.10.2004, those
vendors executed registered Conveyance Deed in their favour. Earlier, in
1993, the City Survey Officer conducted survey of the larger plot of land
and demarcated the suit property, which was shown in the CTS Plan. In
fact, the plaintiff, along-with the said Surjeet, carried various business
from the suit property, under the Licenses/permits and permissions duly
issued by the concerned authorities. Simultaneously, they had the Shops
and Establishment Certificate, electricity connection, etc. therefor.
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in L.C. Suit No. 1376/2020.
04. The plaintiff contended that those structures were abutting
to IIT Road, Powai and were partly affected by the road line. Hence, the
MMRDA issued notice to remove the structures therefrom and allowed
to construct it on the said property under the Kurar Pattern. Thereafter,
by the letter dtd. 01.06.2007, the defendant informed the plaintiff that
the structures were affected under the road line, to the extent of 407.91
sq. mtr.. Hence, by the letter dtd. 31.05.2007, the plaintiff requested the
MMRDA to allow to retain balance unaffected structure with permission
to reconstruct the area, affected by the road widening. Accordingly, the
plaintiff and the said Surjiet handed over possession of the affected part
to the MMRDA. As such, on 31.08.2007, the defendant permitted to do
so under the Kurar Pattern. Moreover, as per the letter dtd. 11.02.2008,
the defendant permitted him for shifting of the affected structures and
accordingly, they reconstructed the suit premises and started carrying a
business under the name and style of ‘M/s. Hotel Mini Punjab Lakeside’.
On 12.03.2008, the defendant issued Completion Certificate for the said
work and observed that such construction was carried as recommended
by the MMRDA and it was satisfactory one. Further, on 28.02.2009, the
defendant granted NOC for installation of the hydraulic lift thereat and
since then, he, along-with said Surjeet, carried their business. They had
various licenses for the said cause and the suit premises was assessed to
taxes. More so, the land of Survey No. 19 is declared as slum and hence,
only the Competent Authority, in view of the Slum Act, had right to take
cognizance against the same. Still, on the false complaints of one Firoz,
who was claiming himself as the owner of the suit property, initially, the
defendant issued notice on 27.05.2013, alleging that while carrying the
said construction work, the plaintiff violated terms and conditions of the
said permission and constructed beyond the permitted area. He replied
the said notice. However, without considering the same, on 04.06.2015,
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the defendant passed the Order, calling him to remove the suit premises
within 07 days from its receipt. The plaintiff assailed the notice by filing
Suit No. 1338/2015 and as per the Order passed on 12.06.2015, in NM
No. 2277/2015, the interim relief was granted in his favour, restraining
the defendant to take action in pursuance of the said notice. Moreover,
as directed by the said Court, the plaintiff submitted the map in respect
of the suit premises, duly certified by M/s. Arc Architectural System, the
Civil Engineer, vide letter dtd. 27.06.2015. Even the said Firoz also tried
to join himself in the suit, by filing Chamber Summons No. 1126/2015,
which was dismissed on 16.04.2016. Finally, on 16.07.2017, the Officer
of the defendant made the statement before the Court that the notice of
dtd. 27.05.2013 and the Order dtd. 04.06.2015 were so issued without
following due process of law and the same were withdrawn. Hence, the
said suit was disposed on 16.07.2017 itself. However, recently, after 14
months, the defendant issued the notice on 15.10.2018, U/s. 351 of the
MMC Act, alleging unauthorized construction of G+3 structure of Cafe
and G+1 construction of hall i.e. the notice structure. He replied it on
19.10.2018 and without considering the same, the defendant passed the
Order on 12.06.2020. The defendant issued this notice again on the say
of the said Firoz. This way, the said notice and the Order are bad in law
and therefore, he had to file this suit, along-with this NM for the above
reliefs. Supporting his claims, the plaintiff relied on the documents like
the Slum Notification dtd. 25.08.1993, declaring the said land as slum,
Assessment bills, the NA Order, the Agreements, the Conveyance Deed,
Shops and Establishment License, the permission dtd. 31.08.2007, letter
dtd. 11.02.2008, the Completion Certificate dtd. 12.03.2008, the copy
of plaint in Suit No.1338/2015, the letter dtd. 27.06.2015, issued by
the said M/s. Arc Architectural Systems, etc..
05. By assailing this NM, the defendant submitted that in 2007-
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in L.C. Suit No. 1376/2020.
2008, the road widening activities were undertaken by the MMRDA and
that time, survey of these affected structures was carried by Consulting
Engineering Services Pvt. Ltd.. Accordingly, the affected area for ID Nos.
217/35 and 218/35, of the said Surjeet and this plaintiff, was 407.91
sq. mtr.. As such, by a letter dtd. 31.08.2007, the plaintiff was permitted
to construct that much area, with height upto 7.65 mtr., under the Kurar
Pattern.However, after receiving complaint from the said Firoz,when the
Officer inspected the site, he observed that such construction was more
than the permitted limit. Therefore, this notice was issued. The plaintiff
replied the notice on 30.05.2013 and after considering the same, firstly,
on 04.06.2015, such Order was passed. He assailed the said notice and
Order, by filing Suit No. 1338/2015 and during pendency of that suit,
the defendant withdrew the notice and the Order. Again, on 01.10.2018
as the defendant received complaint against the plaintiff's construction,
on 15.10.2018, this notice U/s. 351 of the MMC Act was issued to him
and after considering his reply, the Speaking Order was passed. In fact,
as per permission dtd. 31.08.2007, the construction of 407.91 mtr. was
allowed with mezzanine floor, whereas the plaintiff carried the building
upto 3 floor, which was not legal. Even, the plaintiff did not describe the
suit premises and it is shown as AC shed. He didn’t file any document to
prove its legality and it is not the censused. Further, in the Conveyance
Deed dtd. 29.04.2010, there is no description of the said unauthorized
structure. On this backdrop, the defendant prayed for dismissal of this
NM. Supporting his contentions, he filed the copies of Survey Report of
Consulting Engineering Services Pvt. Ltd., the letters of dtd. 01.06.2007,
31.08.2007, the Kurar Pattern Policy, the notices, copies of complaints,
the photos, the Speaking Order, etc.. By filing his rejoinder to this reply,
the plaintiff denied all adverse contentions of the defendant.
06. In view of his written submissions on this NM, the plaintiff
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re-iterated his contentions of having carried the construction, as per the
permission and issuance of the Completion Certificate dtd. 12.03.2008
to that effect. Even, the defendant granted NOC for installation of lift in
the said premises. In this way, the plaintiff could present a prima-facie
case and therefore, he may be given an opportunity to prove rest of his
contentions on trial. Supporting his stand, he relied upon the matters of
Bajirao Bapur Shinde V. MCGM, in A.O. No. 406/2023, dtd. 02.06.2023,
Pankaj B. Aggarwal V. MCGM, A.O. No.695/2022, dtd.13.07.2022 and
Suresh Shankar Rokade V. MCGM, in A.O. No. 276/2018 with C.A. No.
358/ 2018, dtd. 27.06.2018. Likewise, in his written submissions on the
NM, the defendant repeated his grounds by challenging this NM.
07. Before appreciating the rival stands, at the outset, it would
be pertinent to note that admittedly, during the Survey carried in 2007
for the purpose of road widening, the portion to the extent of 407.91 sq.
mtr. of the plaintiff's property was found affected. Consequently, by way
of letter dtd. 31.08.2007, the defendant allowed him to construct to the
extent of affected area, leaving aside the unaffected structures. More so,
by letter dtd.11.02.2008, the defendant granted permission for shifting
of the affected structures and thereafter, the plaintiff re-constructed the
portion. It is further the matter of record that on 12.03.2008, the Office
defendant granted the Completion Certificate, recognizing such work of
construction to be in consonance with recommendations of the MMRDA
and as such, satisfactory. More so, as per the letter dtd. 28.02.2009, the
defendant granted NOC for installation of the lift at the suit premises. It
is also not disputed that initially, the plaintiff filed Suit No. 1338/2015,
questioning the propriety of the notice dtd. 27.05.2013 and the Order
of dtd. 04.06.2015, whereby the earlier permission of dtd. 31.08.2007
was revoked mainly on the count that the plaintiff allegedly constructed
in excess portion of the structure. However, admittedly, in due course of
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in L.C. Suit No. 1376/2020.
time, the defendant withdrew this notice and the said Order, revoking
such permission. In addition to this admitted position, the record, more
precisely, the copies of Assessment Bills, Deed of Assignment and Shops
and Establishment License prima-facie fortify long existence of this suit
premises.
08. Continuing my discussions, it is notable that while assailing
this NM, the defendant mainly contended that the plaintiff violated the
terms and conditions of the permission dtd. 31.08.2007 and constructed
in access of the area of 407.91 sq. mtr.. As referred earlier, this was very
communication on behalf of the defendant by passing the earlier Order
dtd. 04.06.2015, which was assailed in the said suit and subsequently, it
was withdrawn. More so, presently, barring assertions of the defendant,
the record is silent to readily infer that the total construction carried by
the plaintiff is in access of the affected area of 407.91 sq. mtr.. It further
seems that initially, by the Order dtd. 16.07.2020, this Court granted an
ad-interim relief in favour of the plaintiff, which is continued till today.
While granting this relief, this Court observed that as per the directions
given in Suit No. 1338/2015, the plaintiff placed report of the said Arc
Architectural Systems Pvt. Ltd. showing that such construction was not
beyond 407.91 sq. mtr.. In view of this position of record, this Court is
of the opinion that the parties would require a full-fledged trial to prove
their respective contentions. For this proposition, a helpful reliance may
be placed on the matters of Bajirao Shinde, Pankaj Aggarwal and Suresh
Rokade, Cited Supra. Needless to mention that in view of this notice, if
the structure is demolished, the very purpose to file this suit would be
frustrated. Hence, calling both the parties to test their rival contentions
on trial, the notice structure requires to be protected, till disposal of the
suit or till the defendant follows the due process of law. In this way, the
plaintiff could present prima-facie case and the balance of convenience
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also tilts in his side. Simultaneously, he would suffer irreparably, if this
notice structure is demolished. Therefore, I answered point Nos.1 to 3
in the affirmative and in the answer to point No. 4, I pass the following
Order:
-: O R D E R :-
(i). Notice of Motion No. 1304/2020 is partly allowed.
(ii). The defendant, his agents, his servants and anybody
else claiming through him are hereby restrained from
proceeding against the notice structure, in pursuance
of the notice dtd. 15.10.2018 and the Speaking Order
dtd.12.06.2020, except by following the due process
of law.
(iii). Notice of Motion No. 1304/2020 is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 12.11.2024. City Civil Court, Mumbai.
Dictated on : 12.11.2024.
Transcribed on : 30.11.2024.
Checked and Signed on : 02.12.2024.
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in L.C. Suit No. 1376/2020.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
02.12.2024 at 1.48 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 12.11.2024
Judgment/Order signed by P.O. on 02.12.2024
Judgment/Order uploaded on 02.12.2024
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